46 Kan. 359 | Kan. | 1891
Opinion by
This is an original action in quo warranto, the object of which is to determine whether Frank Meyer or John I. Deniston was duly elected register of deeds of Comanche county at the general election in 1889. Meyer was declared elected by the board of county canvassers, and received a certificate of election, and within twenty days after the notification of his election, and prior to the second Monday in January, 1890, he took and filed with the county clerk his oath of office, and demanded of Deniston the possession of the office and the things belonging thereto. Deniston, who had previously been elected for a term of two years, and who was legally in the possession of the office, refused to turn it over to Meyer, claiming that he and not Meyer had been elected in 1889. In July, 1890, Meyer tendered to the board of county commissioners, then in regular session, his resignation, which was accepted, and one S. D. Stipp was appointed to serve until the election in 1890. Stipp took the oath of office, filed a bond, and demanded possession of the office from Deniston, who refused to surrender. This action was commenced on behalf of Stipp on the 26th day of July, 1890.
The official canvass of the election in 1889 shows 680 votes cast for candidates for the office of register of deeds, and of these Frank Meyer received 345, and John I. Deniston re
It is shown by the evidence that Abram Vanwey, Otto Barley, W. S. Mussett, Isaac Mussett, E. T. Bidwell, H. H. Dun-ham, James Crouch, Alexander Boland, George Overocker and Burt Crew were at the time of the election, to wit, on the 5th day of November, 1889, and had been for more than 35 days before that time, residents at Gorham’s ranch, in the Indian Territory, and were not actual residents or legal voters in the state of Kansas; that on the day before the election
It is. admitted that J. S. Calloway voted at Coldwater township polls. His ballot is numbered 29 on the poll-books, and that the name of Frank Meyer, as a candidate for register of deeds, appears on that ballot. S. T. Golloher testified that, in September, 1889, and long before that time, he was a resident of the state of Alabama; that he knew J. S. Calloway, who was and had been for five years a resident of the state of Alabama; that when Golloher moved to Kansas, in September, 1889, he left Calloway in the state of Ala
The legality of the votes of R. C. Brennon, Gater Stringer and others is challenged on the following grounds: Gater Stringer, whose deposition was taken in Kingfisher county, in the territory of Oklahoma, testified that on the 8th day of June, 1889, he filed a homestead claim on land in the territory of Oklahoma; that he broke ground and put in a small crop in May and June, 1889, and built his house in November and December, 1889; that from the time he filed on his claim and made settlement, he intended to make that his home and raise his family there. He • went back to Cold-water, Comanche county, his former residence, to see his family, who still remained there; voted at the election on the 5th day of November, 1889, for Frank Meyer for register of deeds; left again for Oklahoma on the 7th day of November;
One A. H. Wineburner stated that he had received $10 from Deniston for work done for him during the campaign. At the time Deniston paid him a part of the money, he told Wineburner he expected his vote, but Wineburner says that he had not promised to vote for him prior to receiving this money. Deniston does not deny giving the money, but claims he did not offer to pay any until Wineburner had declared that he was going to vote for him, and then the money was furnished to pay the expenses of Wineburner on his trips to different localities. It seems to us that this would be a corrupt vote, if it was shown that Wineburner did vote for Den
It appears that the following illegal votes were cast for Meyer, to wit, those of Abram Vanwey, Otto Barley, W. S. Mussett, Isaac Mussett, E. T. Bidwell, James Crouch, Alexander Boland, George Overocker, Burt Crew, William M. Davis, William Y. Davis, Newton Davis, J. S. Calloway, Gater Stringer, R. C. Brennon, and Samuel Brown. It appears that the following illegal votes were cast for John I. Deniston, to wit, those of EL II. Dunham and Perry Kinman —two in all. The canvass of the county board is corrected so as to show that 333 votes were cast for John I. Deniston for register of deeds, and 329 for Frank Meyer for register of deeds of Comanche county.
It is recommended that judgment be entered declaring that John I. Deniston was duly elected register of deeds of Comanche county at the election in question, and that a judgment be rendered in his favor for costs.
By the Court: It is so ordered.
Johnston, J.: The evidence submitted is not clear or satisfactory as to the exact number of legal votes that were cast for each candidate, but an examination of the same fails to convince me that the board of county canvassers made any mistake in issuing a certificate of election to Frank Meyer, or that John I. Deniston was elected register of deeds by a majority of the legal votes which were cast.